April 4, 2008 Reasonable Doubts

APPEALS - MISSING RECORD

People v. Rundle (Ca. Sup. Ct., 4/3/08, S012943) 08 C.D.O.S. 3879
Unlike other instances in which record explicitly mentions off-the-
record discussions, in this case there was no indication anywhere in 
the record, including in the settled statements on appeal, that any 
discussion between counsel and the court took place regarding 
defendant's ultimate decision to attend the proceedings. "Defendant's 
suggestion a meeting occurred at which such a discussion transpired is 
no more than unsupported speculation, and he has not shown the 
existing record is inadequate in this respect."
However, a number of off-the-record meetings took place concerning 
jury instructions. This was error in a capital case, but not 
reversible per se, and appellant here failed to show prejudice. 
"[S]tate law entitles a defendant only to an appellate record 
'adequate to permit [him or her] to argue' the points raised in the 
appeal. [Citation.] Federal constitutional requirements are similar. 
The due process and equal protection clauses of the Fourteenth 
Amendment require the state to furnish an indigent defendant with a 
record sufficient to permit adequate and effective appellate review. 
[Citations.] Similarly, the Eighth Amendment requires reversal only 
where the record is so deficient as to create a substantial risk the 
death penalty is being imposed in an arbitrary and capricious manner. 
[Citation.] The defendant has the burden of showing the record is 
inadequate to permit meaningful appellate review. [Citation.]" (People 
v. Rogers (2006) 39 Cal.4th 826, 857-858.) Error in failing to 
transcribe the jury instruction conferences was harmless under the 
applicable state (People v. Watson (1956) 46 Cal.2d 818, 836) and 
federal (Chapman v. California (1967) 386 U.S. 18, 24) standards.

LESSER INCLUDEDS - ASSAULT NOT LIO OF ATTEMPTED RAPE

People v. Rundle (Ca. Sup. Ct., 4/3/08, S012943) 08 C.D.O.S. 3879
Under the elements and accusatory pleading tests assault is not a 
lesser included offense of attempted rape, so trial court did not err 
in failing to instruct on its own motion.

JURY INSTRUCTIONS - VOLUNTARY INTOXICATION

People v. Rundle (Ca. Sup. Ct., 4/3/08, S012943) 08 C.D.O.S. 3879
instruction on the significance of voluntary intoxication is a 
"pinpoint" instruction that the trial court is not required to give 
unless requested by the defendant. (People v. Saille (1991) 54 Cal.3d 
1103, 1120; see also People v. Clark (1993) 5 Cal.4th 950, 1022.)

JURY INSTRUCTIONS - FORFEITURE BY FAILURE TO OBJECT TO ADEQUACY

People v. Rundle (Ca. Sup. Ct., 4/3/08, S012943) 08 C.D.O.S. 3879
Defendant failed to preserve objection to adequacy of instruction, 
and therefore forfeited challenge. (People v. Hudson (2006) 38 Cal.4th 
1002, 1011-1012) [" 'Generally, a party may not complain on appeal 
that an instruction correct in law and responsive to the evidence was 
too general or incomplete unless the party has requested appropriate 
clarifying or amplifying language' "].) A court may review the 
instruction under Penal Code section 1259 "if the substantial rights 
of the defendant were affected thereby."

MISCONDUCT - PROSECUTORIAL - ATTACK ON DEFENSE COUNSEL'S HONESTY

People v. Rundle (Ca. Sup. Ct., 4/3/08, S012943) 08 C.D.O.S. 3879
To the extent prosecutor's statements suggested defense counsel 
participated in fabricating defendant's lies, it was not improper 
comment in context, where defendant's story changed drastically during 
trial preparations. Would have been misconduct if there had no 
evidence to support claim. (See People v. Earp (1999) 20 Cal.4th 826, 
862.)

PROSECUTIONS - SIMULTANEOUS CIVIL AND CRIMINAL

United States v. Stringer (9th Cir. 4/4/08, 06-30100) 08 C.D.O.S. 3977
Trial court's dismissal of indictments reversed because in a standard 
form it sent to the defendants, government fully disclosed possibility 
that information received in the course of civil investigation could 
be used for criminal proceedings. "There was no deceit; rather, at 
most, there was a government decision not to conduct the criminal 
investigation openly, a decision we hold the government was free to 
make. There is nothing improper about the government undertaking 
simultaneous criminal and civil investigations, and nothing in the 
government's actual conduct of those investigations amounted to deceit 
or an affirmative misrepresentation justifying the rare sanction of 
dismissal of criminal charges or suppression of evidence received in 
the course of the investigations." Information from conflicted 
attorney could be used because government advised attorney of 
existence of potential conflict in representing defendants and 
corporation, and government did not interfere with attorney-client 
relationship.

WEAPONS - POSSESSION OF MULTIPLE WEAPONS

People v. Correa (C.A. 3rd, 4/4/08, C054365) 08 C.D.O.S. 4005
Because Penal Code section 12021, subdivision (k) provides for 
separate punishment for each firearm possessed by ex-felon, seven 
consecutive terms for possession of seven weapons did not violate 
Penal Code section 654.